Judicial activism

Ron Paul Re-Litigates McCullough v. Maryland

Ron Paul, recently-declared candidate for the Presidency and halfway tea party hero, offers a constitutional vision where Medicare, Social Security, and most other things are unconstitutional:

I’m not sure to whom this kind of pitch appeals — possibly, exclusively, the extremist narrow-government types who see congressional and presidential overreach everywhere they look, but only since January 20, 2009. Either way, the approach contrasts with the way we’ve run this country since the early 1800s. It was settled early in our national history that a government of enumerated powers differs from a government of only enumerated powers.

The Founding generation specifically rejected the notion that the Tenth Amendment, or any constitutional doctrine, prohibits the government from exercising a power “necessary and proper” to the execution of its expressly delegated authority, and courts have, without exception, noted their duty to defer to Congress’ reasonable construction of its powers, lest they truly become “activists” in unnecessarily striking down congressional prohibitions.

Ron Paul would have us return to the Articles of Confederation. I’m not sure why.

Authorities follow below the jump.  Continue reading »

Christine O’Donnell Just Loves the Supreme Court

Given a few days, Christine O’Donnell can think of something to say about the Judiciary, and the profoundly “activist,” revolutionarily recidivist Roberts Court is just fine by her:

The Supreme Court under Chief Justice John Roberts and Associate Justice Samuel Alito has returned to a rule-of-law court, so there is no longer a laundry list of recent disappointing decisions that stray from America’s founding principles.

But lest there be any doubt, a vote for the Republican Party continues to be a vote for indefinite detention, proudly and boldly asserted on the President’s say-so, with no input from the legislative branch:

Consequently there are no recent Supreme Court decisions with which I vigorously disagree, with the exception of Boumediene v. Bush in 2008, Hamdan v. Rumsfeld in 2006 and Kelo v. City of New London in 2005. The court’s strong record in recent years proves the tremendous importance of appointing constitutionally based judges and Supreme Court Justices.

 For what it’s worth, even Justice Scalia thought the government went too far in Hamdan, by detaining an American citizen without recourse to legal process. Consensus has moved towards the Democrats on this issue, and it’s time for all the concern trolls to show their quality, and stand with us.

Why We Run to the Courts

Previous, intelligent critiques of judicial review have assumed — and, in fact, relied upon — the idea that the majority would deal fairly with the minority. Jeremy Waldron:

I assume that there is a strong commitment on the part of most members of the society we are contemplating to the idea of individual and minority rights. . . . They believe that minorities are entitled to a degree of support, recognition, and insulation that is not necessarily guaranteed by their numbers or by their political weight.

Today, that starry-eyed ideal took another beating, as all Republican Senators, plus one Democrat (two, if you count Sen. Reid’s clearly procedural vote), prevented even the opening of debate on the defense appropriations bill that would have both repealed Don’t Ask Don’t Tell, and ended the practice of “secret holds.” Politico criticizes the likely advocate’s reaction: self-help, through the courts.

This, though, is now the only answer. By blocking repeal, the Senate stands in the way of a growing, supermajority consensus that servicemembers should be allowed to serve openly, even though standing against repeal is no longer rational. Logically, legally, or politically. And yet, we can add this to the growing list of things that can’t be accomplished, given a force of mindless obstructionism.

If the legislature won’t secure the people’s rights, the courts will. They’ve already started down that path (pdf). That’s why they’re there.

Text & Meaning: Constitutionalism for the Elites?

In the wake of several monumental district court decisions — enjoining SB1070, and invalidating California’s discriminatory Proposition 8 — we should brace ourselves for the resurgent old narrative, that a minority of “elitist” judges ought not be in the business of preventing the majority from indulging in its favorite blood sport, discrimination.

As anyone with a passing interest in American constitutional theory will tell you, the opposite is true. When the majority mistakes its moral whim-of-the-moment for some foundational tenet, obscured but nonetheless present in our shared past, it is “emphatically the province and duty of the judicial department” to inderdict them in their quest to leverage it for personal gain, unless the pursuit also represents some part of the legitimate work of governing.

A more salient criticism is the observation that, in the process of judging, most jurists will rely on doctrines, theories, and terminologies wholly extrinsic to the Constitution itself, and to any governing law. Take this recent comment from Concurring Opinions:

I think it’s the persistent belief among laymen that, at SOME POINT, the actual text of the Constitution has got to start mattering. That the judiciary aren’t completely corrupted.

It’s a naive belief, and there was never much to support it, but it’s been out there. When it finally goes away, so will the popular legitimacy of the courts, I suspect.

It’s true that modern constitutional litigation has far outgrown the actual text of the document. For their parts, not even textualist scholars dispute this premise, as they, too, use the text as a starting point for a larger structural or deeper linguistic analysis. The vagueness of the document requires as much (what is a “commerce”?). When resolving a dispute with any degree of complexity, it’s impossible to exclusively rely on the words on the page. And that’s the way it was meant to be. Constitutions are starting points, and the early judiciary, populated with men who had helped draft or even sign the Constitution, was already in the process of building up doctrine that would calcify around the Constitution’s key requirements, and later supplant the text, at least for the purposes of legal analysis.  Legally, this is good: the generation of doctrine promotes predictability, where recourse to the text alone would require every case to start from first premises. It’s also the way the common law system works, and precisely what the Founders had in mind.

Politically, though, it’s a disaster. Many of the most important modern doctrines aren’t discernable without full knowledge of the history behind them and, without that knowledge, look for all the world like they sprung fully-formed from the head of the latest judge to incur the right wing’s wrath.

“Tea party” talking points about “respecting the Constitution” play off this alienating effect, and gain traction where first premises look more attractive than the rules that they’ve generated, over the course of the centuries. In a sense the tea party view of the Constitution is an anarchic one — aimed squarely at erasing those rules, to get back to the Constitution’s primitive roots — and one that suffers from the same problem of other anarchic movements. It’s short-sighted, and ultimately contradictory. In human society, order fills chaos. The Constitution is a hollow shell without the citizens, lawyers or laymen, whose controversies give it substance. Tea partiers know this, and want a tabula rasa not for its own sake, but so they can populate it with their notion of the way things should’ve been. It’s chronological primitivism, plain and simple, but one legitimized by the presence of a foundational document, and bolstered by the feeling that, somewhere along the line, the text stopped mattering.

How do we fight that? We’re right that the text should be a starting point only, but that’s not enough.

“Deliberately Open-Ended Guarantees”

For those of you in the legal community, this is old news, but deserves second reflection; for the remainder of my admittedly small readership, read this speech by Justice David Souter, given at Harvard, on the difficulty of providing a meaningful resolution to complex constitutional questions.

He explains that, at best, we expect the law to be syllogistic — major premise applied to discrete factual situation compels simple resolution:

The charges of lawmaking and constitutional novelty seem to be based on an impression of the Constitution, and on a template for deciding constitutional claims, that go together something like this.  A claim is made in court that the government is entitled to exercise a power, or an individual is entitled to claim the benefit of a right, that is set out in the terms of some particular provision of the Constitution.  The claimant quotes the provision and provides evidence of facts that are said to prove the entitlement that is claimed.  Once they have been determined, the facts on their face either do or do not support the claim.  If they do, the court gives judgment for the claimant; if they don’t, judgment goes to the party contesting the claim.  On this view, deciding constitutional cases should be a straightforward exercise of reading fairly and viewing facts objectively.

But a Constitution is not a statute. It neither contemplates nor attempts the exhaustive resolution of all possible questions:

There are, of course, constitutional claims that would be decided just about the way this fair reading model would have it.  [. . .]  But cases like this do not usually come to court, or at least the Supreme Court. And for the ones that do get there, for the cases that tend to raise the national blood pressure, the fair reading model has only a tenuous connection to reality.

Even a moment’s thought is enough to show why it is so unrealistic.  The Constitution has a good share of deliberately open-ended guarantees, like rights to due process of law, equal protection of the law, and freedom from unreasonable searches.  These provisions [. . .] call for more elaborate reasoning to show why very general language applies in some specific cases but not in others, and over time the various examples turn into rules that the Constitution does not mention.

Accordingly we must routinely look beyond the Constitution to resolve constitutional questions. In defense of this position, and against the alternative “fair reading” approach to constitutionalism (a hybrid textualism/originalism), Justice Souter marshals two arguments: societal assumptions change, compelling different results (Brown v. Board of Education), and the Constitution asks us to vindicate competing values, thus requiring judges to balance them, and foreclosing resort to simple absolutes (New York Times Co. v. Sullivan).

To these points we can add one more, expanding on Souter’s characterization of constitutional rights as “deliberately open-ended guarantees.” The founding generation knew how to write a static law. They also knew they were building a country whose life would be measured not by generations, but by centuries, and as witnesses to history, knew that such a future implied levels of societal change that could not be anticipated, much less legislated in advance. Towards that end they gave us not an exhaustive rulebook but a guide to the values we should seek to balance when resolving novel conflicts. Judges aren’t bound by the way society looked in 1789, then, or by the precise letters of the Constitution, but by the overall structure of the document, and the types of balances it strikes. This reading preserves for the document a dignity of which simpler approaches would rob it. And, in light of the abhorrent compromises intermittently struck by constitutional scholars throughout the history of the document, lets the Constitution, and its drafters, serve as the instruments of their own redemption. It also validates the core assumption of the American dream: that the future can be better than the past.

Faulting NYT’s Kagan Coverage, Already

In their immediate lead on Elena Kagan, the current Solicitor General and Obama’s reported nominee to the high court, the New York Times reports the following while canvassing Kagan’s views on selected issues:

Judicial Activism

In Ms. Kagan’s written responses to Senate questions during her confirmation for solicitor general, she disagreed with the view that the courts should take the lead in creating a more just society. “I think it is a great deal better for the elected branches to take the lead in creating a more just society than for courts to do so.”

Solicitor general confirmation hearing, 2009

In so doing, the Times engages in the Republican fiction that “judicial activism” is, and should be, an issue. It shouldn’t be an issue — at least as traditionally framed by conservative politicians — because it shouldn’t be controversial when courts enforce positive rights, even when doing so overrides the legislature, and we shouldn’t be surprised when courts engage in substantive lawmaking incidental to the resolution of a particular dispute, because this is precisely the role that the Founders expected the federal bench to play. By discussing “judicial activism” as such, the Times accepts that there is a controversy when there should be none. You might as well report as newsworthy that a given scientist “believes” in evolution. We shouldn’t care when federal judges, or candidates for the bench, embrace their constitutional role, even if that role has become somehow controversial.

There’s a measure of redemption in the Times‘ positive framing of the definition of judicial activism, as the notion that “the courts should take the lead in creating a more just society.” But even this concedes that “activism” means the Court leads society forwards, when what conservatives call “activism” is really about leading us back to foundational principles, like equality. This is why Democrats lose debates: we accept the other side’s premise, even though doing so means we’ve already lost.

Reclaiming the Constitution… From the Supreme Court?

Huh?

The National Review’s culture war blog, The Corner, makes little sense on its best days. But a new soon-to-be series, headlined by Rob Clinton’s “Judicial Supremacy and the Constitution,” appears to transcend the genre of reactionary, paleoconservative folklore, even as it re-invents it. Truly, Clinton’s opener may well approach the Form of political absurdity, from which all lesser daemons — your Goldbergs, your Becks — emanate. We can only pray that he’ll be re-secured to the wall of his cave, and fast.

N.B.: this is a long post. Skip to § III for the beginning of the main argument, if you must. -Ed.

Continue reading »

The Court as a Political Actor

When Obama criticized the Supreme Court’s holding in Citizens United, and the Supreme Court per Alito audibly responded, conservatives and liberals alike reacted with horror, albeit to different parts of the story. For we liberals, it’s terrible and a breach of decorum for Alito to talk back to the President; for conservatives, it’s terrible that Obama lit into the Court in the first place.

We’re both wrong. Well, we, liberals are actually right, but our simple case doesn’t present the whole story. Alito’s outburst was a breach of decorum, sure, but one he was privileged to make if we were wrong in the first place. So let’s get to that question.

Chief Justice Roberts, again speaking yesterday, regards it as impolitic for Obama to even address the Court in his speech. That surely overstates the case.  It would be wrong for Obama to attack individual Justices, or at least tacky, but the Supreme Court is a coordinate and equal branch of government, with a significant but not absolute role in the making of substantive law. The President can properly build an agenda, and Congress can properly legislate, to abrogate Supreme Court decisions or limit their effects. The Court is not a proxy for the Constitution; as the years since Roe should have proved, a constitutional holding is the beginning, not the end, of a dialogue about the document’s meaning. Presidents are entitled to input on that question, especially when that input is phrased not as an attack on the Court’s legal reasoning, but as clear concern for the holding’s effects. This, in fact, is exactly the path Obama charted:

With all due deference to separation of powers, last week the Supreme Court reversed a century of law that I believe will open the floodgates for special interests –- including foreign corporations –- to spend without limit in our elections. (Applause.) I don’t think American elections should be bankrolled by America’s most powerful interests, or worse, by foreign entities. (Applause.) They should be decided by the American people. And I’d urge Democrats and Republicans to pass a bill that helps to correct some of these problems.

Roberts’ counterargument must rest on the theory that the Supreme Court is an utterly neutral body, immune and oblivious to politics, and simply engaged in a dialectic on the Platonic meaning of The Constitution, of which they are the sole arbiters.

This is a polite fiction that we occasionally tolerate, but in which we’ve never truly believed. Since the birth of the strong Supreme Court, it has been a political body. Marbury v. Madison emerged from an acknowledged political staredown between the Court and newly-elected President Jefferson, and it was the Court, not Jefferson, that performed Kruschev’s miracle: it blinked, while appearing not to. Since then, men we call heroes have taken it upon themselves to question the Court, and wound up on the right side of history for it. Lincoln campaigned against Scott v. Sanford and secured its reversal by war; Roosevelt came the closest to true impropriety by threatening the Court not with legislative reversal, but with irrelevance through dilution.

And, lest we forget, the modern conservative movement was built on attacking judicial power. Virulently. First for Brown, then for Roe (see, e.g., right), then for the principle of their existence (“activist judges!”). Conservatives can’t — or shouldn’t be allowed to — have it both ways, raising the Court’s mystique and grandeur as a defense only when it suits them.

Roberts is right to the extent that it’s better for our political culture if politicians do treat the Court’s reasoning as inviolate, even as they freely question their policy. After all, policy is not their core competency. But that’s not a commandment Obama broke, especially considering the profound policy implications, and blatant policy motivations, behind the Roberts Court’s entire campaign finance jurisprudence.* If Roberts is troubled by controversy, well, to paraphrase his most famous dicta to date, the easiest way to avoid being criticized for questionable decisions is to stop issuing questionable decisions.

* = As a favorite professor of mine says, there are two ways to read FEC v. Wisconsin Right to Life — either Roberts knows something we don’t, and doesn’t say it, or he’s making things up.

Victory!

Finest muffins & bagels in all the land, &c — foe of all conservatives everywhere, Judge David Hamilton, is now easily slated to take his seat on the Seventh Circuit Court of Appeals. Apparently Hamilton had a leadership position in the ACLU and had raised money for ACORN. We could fact-check RedState on this, but what’s the use? If it’s true, it just means they lost harder than expected.

Dishonest Fear Mongering on Seventh Circuit Nominee David Hamilton

Still convinced that they matter, the far right, from RedState to NRO, are rallying to oppose District Judge David Hamilton, whose appointment to the Seventh Circuit is now pending before the Senate. One part of their argument is that Judge Hamilton previously forbade sectarian prayer in the Indiana legislature, but offered to construe prayers to “Allah” as nonsectarian, and therefore permissible. Down with Jesus, up with Allah! While terrifying if true — conservatives and liberals can agree on that, if for different reasons — it’s completely false. Here’s why.

The case is Hinrichs v. Bosma, and the offending post-judgment motion is contained at 2005 U.S. Dist. LEXIS 38330. The relevant text:

The Speaker has also asked whether, for example, a Muslim imam may offer a prayer addressed to “Allah.” The Arabic word “Allah” is used for “God” in Arabic translations of Jewish and Christian scriptures. If those offering prayers in the Indiana House of Representatives choose to use the Arabic Allah, the Spanish Dios, the German Gott, the French Dieu, the Swedish Gud, the Greek Theos, the Hebrew Elohim, the Italian Dio, or any other language’s terms in addressing the God who is the focus of the non-sectarian prayers contemplated in Marsh v. Chambers, the court sees little risk that the choice of language would advance a particular religion or disparage others. If and when the prayer practices in the Indiana House of Representatives ever seem to be advancing Islam, an appropriate party can bring the problem to the attention of this or another court. (Emphasis/coloring added.)

The discussion emerges from Judge Hamilton’s attempt to define what constitutes a “sectarian” prayer in the Christian tradition, and is therefore forbidden. In context, this paragraph is an explanation that the choice of the name of God is irrelevant to the question of whether a prayer is “sectarian” — and a reminder, bolded in my copy, that if a prayer to “Allah” were to “ever seem to be advancing Islam,” it would be a “problem” worthy of his attention.

Admittedly Hamilton’s phrasing was unfortunate — it violates “Rove’s Law,” in the sense that the red-lettered portions of the paragraph can be excerpted from the whole to make it seem like Hamilton is advocating for something that he is not. But the bolded section, which describes Islamic sectarian prayer as a “problem” similar to Christian sectarian prayer, controls, and cannot be divorced from an honest reading of the opinion. If conservatives’ concern is that sectarian prayer ought to be permitted in legislatures, that’s a valid disagreement with Judge Hamilton; the contention that he supports Islamic but not Christian prayer, however, is not.